United States v. Rosario

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit

TENTH CIRCUIT August 20, 2013
___________________________________
Elisabeth A. Shumaker
Clerk of Court
UNITED STATES OF AMERICA,

Plaintiff-Appellee,
v. No. 13-3015
JULIO ROSARIO, JR., (D.C. No. 6:12-CR-10191-MLB-1)
(D. Kan.)
Defendant-Appellant.
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ORDER AND JUDGMENT*
____________________________________

Before ANDERSON and BALDOCK, Circuit Judges, and BRORBY, Senior
Circuit Judge.**
____________________________________

Defendant Julio Rosario pleaded guilty to a one-count indictment for failing to

violation of 18 U.S.C. § 2250(a). Applying the 2012 version of the guidelines manual,

the presentence report (PSR) assigned Defendant a total offense level of 12, resulting

from a base offense level of ten and a two-level decrease for acceptance of responsibility.

See U.S.S.G. §§ 2A3.5(a)(3); 3E1.1(a). Defendant’s criminal history was category VI,

*
This order and judgment is not binding precedent except under the doctrines
of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its
persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
**
After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f) and 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument.
yielding a guideline range of 24–30 months. See U.S.S.G. §5A (2012). Varying upward,

the district court sentenced Defendant to a term of 48 months’ imprisonment. On appeal,

Defendant challenges the length of his sentence. Exercising jurisdiction under 28 U.S.C.

§ 1291 and 18 U.S.C. § 3742, we affirm.

Defendant was convicted in 2005 of attempted third-degree sexual assault in

Alaska. Consequently, he is required to register as a sex offender for 15 years. See

U.S.C. § 16913(e); Alaska Stat. § 12.63.020(a)(2). In March, 2012, Defendant moved to

Kansas to be with his common-law wife and six-year-old son. He then contacted the

Sedgwick County Sheriff Offender Registration Unit and inquired about registering as a

sex offender. A county clerk provided Defendant with registration paperwork and

advised him of the requirement to make quarterly payments. Defendant stated he needed

more information, left, and never came back. Deputies arrested Defendant in August,

2012. When questioned, Defendant stated he “tried, but [the deputies] wanted too much

money and information. [He] got frustrated and left.” R.O.A. Vol. II, at 6. A subsequent

forensic psychological evaluation indicated Defendant’s intellectual functioning is in the

8th percentile and his reasoning abilities are just above those commonly observed among

persons diagnosed with mental retardation. The evaluation concluded Defendant’s

failure to register could be, at least in part, attributed to his limitations in intelligence and

reasoning abilities. R.O.A. Vol. II, at 20–21.

Emphasizing his limited mental capacity, Defendant filed a sentencing

memorandum prior to the sentencing hearing requesting a variance below the advisory

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guidelines. Defendant argued his criminal history is not as severe as it may appear and

he had learned his lesson. The PSR revealed that Defendant has nine prior assault

convictions, including one for sexual assault, convictions for possession and for

possession with intent to distribute controlled substances, and convictions for various

other crimes including theft, making a false report, failing to register as a sex offender,

violating protective orders, a DUI, and driving without insurance. Most of Defendant’s

assault convictions and violations of protective orders involve offenses directed at his

current common-law wife. In his memorandum, Defendant noted he had not been

convicted or charged with drug-related activity since 1991, his only theft conviction

resulted from stealing a candy bar from a convenience store in 2000, and “he was

convicted of attempted sexual assault in 2004 based upon placing his penis in the hand of

his 18 year old niece while she was sleeping. He remains thoroughly humiliated by his

actions, will not speak about it and nothing like that has ever happened again.” R.O.A.

Vol. I, at 24. Furthermore, “recent history both in Alaska and here in Kansas indicates

[he and his wife] are learning to deal with conflicts in a reasonable manner . . .” Id. at 24–

25.

Unpersuaded, the district court indicated it was considering an upward variance up

to the statutory maximum of ten years based on Defendant’s criminal history involving

assaultive behavior. At the sentencing hearing, Defendant and his counsel again asked

for a downward variance. Defendant stated he had made a lot of progress with his anger

management classes and since 2010 he had been doing well. “I changed a whole lot. I

am very impressed with myself. And I wish my wife was here because she would tell

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you she’s impressed with me, too . . . .” R.O.A. Vol. III. at 12. Still unpersuaded, the

district court indicated that a 30-month sentence, the high-end of the guideline range, was

not sufficient under the terms of 18 U.S.C. § 3553(a) to deter Defendant from further

crimes. Expressing its concern with Defendant’s repeated assaultive behavior, the district

court varied upwards to the 48-month sentence that is the basis of this appeal. In its

statement of reasons for a sentence outside the advisory guidelines, the court cited the

nature and circumstances of the offense and the history and characteristics of Defendant,

the need to afford adequate deterrence to criminal conduct, to protect the public from

further crimes from Defendant, and to provide Defendant with needed educational or

vocational training, medical care, or other correctional treatment in the most effective

manner. See 18 U.S.C. §§ 3553 (a)(1); (a)(2)(B)–(a)(2)(D).

II.

On appeal, Defendant argues a combination of two factors resulted in an

unreasonable sentence: “(1) unreasonable lack of balance in applying 18 U.S.C. §

3553(a) factors and (2) reliance upon misinformation regarding the criminal history . . . .”

Appellant’s Br. at 1. In other words, “the sentencing, including the district court’s

intention to vary upward, focused on his criminal history of assaults. In essence, he was

sentenced for the assaultive behavior in his criminal history, without regard to the crime

of conviction.” Appellant’s Br. at 10.

We review sentences for reasonableness under a deferential abuse of discretion

standard. Gall v. United States, 552 U.S. 38, 46 (2007). “Our appellate review for

reasonableness includes both a procedural component, encompassing the method by

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which a sentence was calculated, as well as a substantive component, which relates to the

length of the resulting sentence.” United States v. Smart, 518 F.3d 800, 803 (10th Cir.

2008) (quoting United States v. Kristl, 437 F.3d 1050, 1055 (10th Cir. 2006)). But

Defendant only argues his sentence was substantively unreasonable. Substantive review

“involves whether the length of the sentence is reasonable given all the circumstances of

the case in light of the factors set forth in 18 U.S.C. § 3553(a).” United States v. Conlan,

500 F.3d 1167, 1169 (10th Cir. 2007). We reverse “only if the [district] court exceeded

the bounds of permissible choice, given the facts and the applicable law in the case at

hand.” United States v. Regan, 627 F.3d 1348, 1352 (10th Cir. 2010) (internal quotations

and citations omitted).

Defendant first argues the district court improperly focused on his criminal history

of assaults without regard to the crime of conviction. First, while 18 U.S.C. § 3553(a)(1)

requires the district court to consider “the nature and circumstances of the offense and the

history and characteristics of the defendant,” this is only one of several factors that

inform a district court’s decision. See 18 U.S.C. § 3553(a). Defendant’s argument

conveniently ignores the other factors and the substantial deference afforded to the

district court’s decision. “We may not examine the weight a district court assigns to

various § 3553(a) factors, and its ultimate assessment of the balance between them . . . .

Instead, we must give due deference to the district court's decision that the § 3553(a)

factors, on a whole, justify the extent of the variance.” United States v. Smart, 518 F.3d

800, 808 (10th Cir. 2008). We are not unsympathetic to Defendant’s limitations and the

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unfortunate circumstances giving rise to the facts of this case. However, “[t]he fact that

[we] might reasonably have concluded that a different sentence was appropriate is

insufficient to justify reversal of the district court.” United States v. Alpizco-Valenzuela,

546 F.3d 1208, 1216 (10th Cir. 2008) (internal citation omitted).

Here, because Defendant’s lengthy criminal history shed light on facts directly

relevant to the §3553(a) factors, the district court did not err in giving it significant

weight.1 The district court did not abuse its discretion by finding that Defendant’s

criminal history demonstrated Defendant had been undeterred by his prior encounters

with the criminal justice system, he posed an ongoing danger to his wife and others, and

he demonstrated a need for some type of anger control counseling. See 18 U.S.C. §§

3553(a)(2)(B)–(D).

Defendant also suggests “the district court’s interpretation of [his] criminal history

was unreasonable” in light of the other sentencing factors in § 3553(a). Appellee’s Br. at

9. In support, Defendant makes three points. First, the record does not support the

district court’s conclusion that he posed a risk to his son. Second, the district court’s

interpretation of his 1996 assault conviction “was unreasonable and inaccurate and

1
We have previously held that a district court can consider uncontested facts
included in the PSR relating to prior arrests for sentencing purposes. See United States
v. Mateo, 471 F.3d 1162, 1166 (10th Cir. 2006); United States v. Valtierra-Rojas, 468
F.3d 1235, 1241 (10th Cir. 2006).

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unduly influenced the court’s decision to vary upward.” Appellant’s Br. at 13. Finally,

the district court’s conclusion that he had not learned from his history was unreasonable.

Turning to Defendant’s first point, Defendant correctly notes that nothing in the

record indicates Defendant has assaulted or threatened to assault his son. The record,

however, shows the district court extrapolated from the uncontested facts in the PSR—

including the number, frequency, and seriousness of Defendant’s various assault

convictions—to draw conclusions about Defendant’s characteristics. Undoubtedly,

Defendant’s past conduct has demonstrated a propensity towards violence. Between

2006 and 2010, at least three of Defendant’s four assault convictions and both of his

convictions for violations of protective orders relate to his wife.2 Defendant’s six-year-

old son lives with Defendant’s wife. Thus, the court did not abuse its discretion in

concluding Defendant posed a threat to his family.

In his second point, Defendant challenges the accuracy of the district court’s

interpretation of his 1996 assault conviction. “[A] defendant [has an] obligation under

Rule 32(i)(3)(A) to point out factual inaccuracies included in the PSR.” United States v.

Wolfe, 435 F.3d 1289, 1299 (10th Cir. 2006). Here, however, Defendant does not

challenge facts contained in the PSR, but rather the conclusions the district court drew

from these facts. The PSR describes the 1996 incident as follows:

According to the Complaint, witnesses reported that they saw the defendant hold
open a folding knife to the chest of J.R., the victim during a verbal and physical
altercation, push her into various objects inside her house, and grasped her by the
throat while holding her against a door. The reporting officer noted that he

2
The record does not contain descriptions of all of Defendant’s assault
convictions.
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witnessed bruising on her leg and a fine puncture wound to the skin of her chest.
The defendant denied the accusations, as alleged in the complaint.

R.O.A. Vol. II, at 9.

At the sentencing hearing, the district court interpreted the above statement as

stating that Defendant bruised and punctured the victim’s lung. Defendant argues this

characterization of the facts “unduly influenced the court’s decision to vary upward.”

Appellant’s Br. at 13. In arguing for a downward variant sentence, defense counsel

characterized Defendant’s assault convictions as “basically fights with his wife,” R.O.A.

Vol. III, at 6, to which the district court judge responded:

You know, I’ve seen a lot of these, and I always, basically, if it’s just one instance,
[defense counsel], discount them. I recognize that these domestic things are
usually both people’s fault . . . . But this has happened in his case six or seven
times over a long period . . . [I]f it was one time or two times, maybe; but this has
gone on and on and on with your client.

R.O.A. Vol. III, at 8–9.

While defense counsel correctly points out that the 1996 “event was the only set of facts

the district court referenced in its review of the assaultive criminal history,” Appellant’s

Br. at 13, the district court followed its interpretation of the 1996 events with the

following statement:

And in 2000, another assault. 2001, another assault. 2006, another assault. 2007,
another assault. 2008, another assault . . . . I have to consider your statements in
view of your history and your history is not consistent with learning anything
about the importance of not assaulting people and staying out of trouble with the
courts.

R.O.A. Vol. III, at 19. The sentencing transcript makes clear that the district court was

more concerned with Defendant’s lengthy history of assaultive behavior, rather than the

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isolated facts of the 1996 assault conviction. Despite its mischaracterization, the district

court did not abuse its discretion in imposing an upward variant sentence based on

Defendant’s repeated assaultive criminal history.

Finally, Defendant challenges the district court’s conclusion that he had not

learned from his history as unreasonable. Defendant was last released from custody in

January, 2012, after serving time for violating a protective order regarding his common-

law wife. Evidence exists in the record that Defendant and his wife lived together from

March until August, 2012, and that during that time no incidents occurred, and no calls to

the police or to his wife’s family were made. Defendant argues he demonstrated he had

his anger management under control and had learned from his mistakes and thus the court

erred in concluding otherwise. However, just because Defendant has not assaulted his

wife or otherwise behaved in a manner that requires involvement by either law

enforcement or a third party does not dispositively prove he has his anger under control

and has learned his lesson. The conclusion that a person with Defendant’s history of

assaultive behavior, though seemingly changed for a couple of months, might assault his

wife or others is not unfounded. Thus, the District Court’s conclusion that Defendant

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needed further deterrence and correctional treatment was not unreasonable.

AFFIRMED.

Entered for the Court,

Bobby R. Baldock
United States Circuit Judge

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